The opinion of the court was delivered by: Preska, District Judge.
Plaintiffs James J. O'Sullivan, Enrique Edwards, Lawrence
Helfand, Thomas P. Mathews, Maureen A. Moccia, Kenneth J. Mooney,
Howard Seiter, Benjamin S. Redmond and Sheila M. Mccue
(collectively, "plaintiffs") bring this claim under the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq., the New York State Human Rights Law, N.Y.C. Admin. Code §§
8-101, et seq., the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1, et seq., the Pennsylvania Human Relations Act,
and the Connecticut Human Rights and Opportunities Law against
defendant, The New York Times ("The Times" or "defendant"),
alleging that on the basis of their age they were terminated from
their positions in a reduction-in-force caused by the
reorganization of the Circulation Department at The Times.
Defendant now moves for summary judgment.
In reviewing (1) the details of the elaborate procedures
whereby employees were evaluated during this reorganization and
those who were to be terminated were chosen, and (2) plaintiffs'
objections to those procedures and decisions, I note the Court's
summary of certain applicable law in Coleman v. Prudential
Relocation, 975 F. Supp. 234, 239 (N.D.N.Y. 1997):
Id. at 239-40 (citations omitted). Plaintiffs' objections to
the decisions made by The Times amount to a difference of opinion
as to (1) the procedure by which the decisions to terminate
employees should have been made and (2) which employees should
have been terminated.
Absent a legally cognizable civil rights violation, the running
of the affairs of a business entity is for management, not for
disappointed employees or their counsel. A simple disagreement
over what constitutes good management is not a fair fight;
management will always win. Moreover, it is not available to this
Court to substitute its ideas of how to run a business for those
of the managers duly vested with that responsibility, except
where the basis for a management decision is shown to be an
unlawful one. Because plaintiffs have not proffered any evidence
from which a jury could find such an unlawful basis, defendant's
motion is granted.*fn1
In October 1987, The Times began to experience a financial
slide caused by decreasing advertising revenue. (Def. 56.1
Statement ¶ 4).*fn2 The recession of the early 1990's had a
negative impact on the revenues, earnings and profitability of
The Times. (Id. ¶ 5). In June 1994, The Times offered a
voluntary buyout program for all employees in the Newspaper
Division. (Id. ¶ 6). Following this buyout program, a new
department was created called Customer Order Fulfillment ("COF").
(Id. ¶ 7). This new department resulted in the elimination of
approximately 40 positions, the then-current holders of which
were subsequently offered a transition package consisting of job
counseling, career counseling, financial counseling, outplacement
services and an extension of tuition assistance program
eligibility. (Id. ¶¶ 8, 9).
In May 1995, the Circulation Department ("Circulation") had a
total of 128 employees. (Id. ¶ 10). The Times determined that
Circulation needed to be reorganized to decrease operating cost
and staff. (Id. ¶¶ 11, 12). On May 19, 1995, William Pollak
("Pollak"), the Executive Vice President of Circulation, told
Circulation employees that a decision had been made to reduce the
staff. The reorganization would result in the elimination of 25
to 30 positions. (Id. ¶¶ 13, 14). Pollak asked Donna Miele
("Miele"), Vice President of Human Resources, to create a process
to reduce the Circulation staff by means of a voluntary buyout
(the "Buyout") similar to that which had been created for the
COF. (Lauri Aff., Ex. D, p. 40). First, each employee in
Circulation would be given an
opportunity to fill out a qualification survey and meet with a
human resources representative who would explain the survey that
the employee had to fill out. Second, each employee's direct
manager would be asked a series of questions and complete a
performance review on each employee. Third, the vice-presidents
would make the final termination decisions. (Id. at pp. 40-41).
This process was developed to help select Circulation employees
for lay-off in the event that 25 to 30 employees did not accept
the Buyout. (Def. 56.1 Statement ¶¶ 16, 17). The Circulation
employees were informed that the reduction of 25 to 30 employees
would be accomplished by (1) eliminating ten to fifteen Home
Delivery Managers who were supervising two to three employees
each; (2) eliminating ten to fifteen Circulation Sales
Representatives ("CSRs")*fn3; and (3) reducing support staff by
between five and ten positions. (Id. ¶ 22).
On June 20, 1995, each employee was sent a self-evaluation form
regarding his/her abilities and performance at The Times.
Employees were offered a training session to assist them in
filling out the survey and were also given an opportunity to
discuss the survey one-on-one with a Human Resources
representative. (Id. ¶¶ 24-27). The survey graded each employee
on a scale of 1 to 5: "5" for work which exceeded requirements;
"3" for work which met requirements; and "1" for work which did
not meet requirements. (Id. ¶ 30). Each employee's supervisor
was required to meet with a Human Resources representative who in
turn completed a Supervisory Reference Form from each of the
supervisor's reports. (Lauri Aff., Ex. D, pp. 41-42). This
combined information was reviewed at a two-day meeting held on
July 24 and 25, 1995 by the four vice-presidents in Circulation —
Harry Woldt, Jr. ("Woldt"), Charles Shelton ("Shelton"), Lauretta
Prestera ("Prestera") and Pollak (collectively, the
"Decisionmakers"), who were 47, 38, 47, and 49 years old,
respectively. (Def. 56.1 Statement ¶¶ 33, 34).
The number of employees in Circulation was reduced in four
ways: (1) several management and support positions were
eliminated outright; (2) the number of Home Delivery Managers was
reduced as territories were both consolidated and closed; (3) the
nature of the CSR position was changed from selling to small
distributors to establishing partnerships with regional papers
for third party deliveries and selling to national chains; and
(4) the night CSR position was eliminated completely. (Id. ¶
36). Following the July 24-25 meeting, 29 employees in
Circulation were identified for termination. (Id. ¶ 37). These
employees were permitted to accept the Buyout up to August 11,
1995. (Id. ¶ 38). Plaintiffs were all employed by The Times in
Circulation and were terminated from their positions in that
Department in August 1995. (Compl. ¶¶ 11-18).
Lawrence Helfand ("Helfand") began his employment with The
Times in 1960 and was 53 years old when he was terminated. (Pl.
Material Facts ¶¶ 1-2). Throughout his course of employment,
Helfand received promotions to Assistant Director of the Home
Delivery Department, Northeast Manager for Circulation,
Transportation Manager, and finally to Home Delivery Manager for
Southern New Jersey. (Id. § 57 4-7). Shelton, his direct
supervisor, stated he "[didn't] recall anything outstanding or
negative" about Mr. Helfand's performance. (Id. ¶ 9; Schneider
Aff., Ex. C, pp. 23). Lauretta Prestera had personal knowledge of
Helfand's performance, and the decision to terminate him was
based on the evaluations presented at the meeting in July 1995.
(Pl. Material Facts ¶ 10). Helfand received a rating of "3" on
the Supervisory Reference Form. (Def. 56.1 Statement ¶ 58). Due
to the reorganization plan, the Northern and Southern New Jersey
territories were combined into
one territory, and Susan Mills was chosen to manage this combined
territory. Mills was 39 years old and received a "5" on her
Supervisory Reference Form. (Id. ¶¶ 58-62).
Thomas Mathews ("Mathews") began working at The Times in 1983
as a newspaper carrier supervisor. (Pl. Material Facts ¶ 12).
Upon termination he was 52 years old and held the position of
National Northeast Home Delivery Group Manager, responsible for
home delivery throughout the country except for the New York City
Metropolitan area. (Id. ¶¶ 11, 17). Mathews alleges that he was
never told anything was wrong with his performance and he never
received negative criticism. (Id. ¶ 21). Prestera indirectly
supervised Mathews when he served as the Northeast National Group
Manager, and John Daly directly supervised him. (Id. ¶ 25). In
the months prior to the downsizing in July 1995, at a meeting to
change management, O'Sullivan alleges that when Mathews began to
speak, Eric Rosen, a 39-year old National Sales Manager stated,
"I guess he forgot to take his senility pills today." (Schneider
Aff., Ex. J, pp. 108-109). Mathews, however, did not attribute
any age-based comments to the Decisionmakers. (Lauri Aff., Ex. K,
pp. 221-222). Prior to the July meeting, Mathews was asked to
write evaluations of the seven employees who reported to him in
addition to other individuals. Mathews alleges he was never told
for what purpose these evaluations would be used. (Pl. Material
Facts ¶¶ 31-33). Mathews received a "3" on his Supervisory
Reference Form. (Def. 56.1 Statement ¶ 67). His position was
reorganized, and the responsibilities were expanded and changed.
(Id. ¶ 68). The Decisionmakers did not feel that Mathews
possessed the necessary skills for this new position. They filled
this position with David Chanler, 41, who had received a rating
of "4-4.5" on the Supervisory Reference Form. (Id. ¶¶ 70, 71).
Howard Seiter ("Seiter") began his employment in 1976 and was
53 years old when he was fired. (Pl. Material Facts ¶¶ 34-35).
Seiter was promoted several times, and in January 1995, Shelton
offered him the position of Training Manager. He never directly
reported to Pollak, but Pollak recalled that Seiter was "well
recommended to become the training manager." (Id. ¶¶ 43-44). He
was not directly supervised by Prestera. (Id. ¶ 46). Seiter
received a "3" on the Supervisory Reference Form and was laid off
because his position as Sales Training Manager was eliminated in
the reorganization. (Def. 56.1 Statement ¶¶ 96, 97).
Maureen Moccia ("Moccia") was 56 years old when she was fired
after 22 years with The Times. (Pl. Material Facts ¶¶ 47-48).
Moccia received a rating of "4.75-5" but was fired because her
position as Support Manager for Special Projects in Circulation
was eliminated. (Def. 56.1 Statement ¶¶ 85, 86). Moccia alleges
that two of her younger counterparts, Laura Pepper-Doyle and
Nayda Mariette, who performed similar functions, were not
terminated even though their ratings were lower. (Pl. Material
Facts ¶¶ 54-57). Moccia was never denied a promotion and received
all salary increases available to her. (Id. ¶ 58). Following
her termination, Moccia applied for a position in the COF
Department and was hired as of August 23, 1995. She received the
same salary and benefits in this position as in her previous
position in Circulation. (Def. 56.1 Statement ¶ 92).
James O'Sullivan had worked at The Times for 33 years when he
was terminated in 1995 at age 50. (Pl. Material Facts ¶¶ 64-65).
He worked in the accounting department, the advertising
department and, as of 1980, in Circulation. (Id. ¶¶ 66-67).
After several transfers he became the regional manager in
Philadelphia. He was never demoted and never failed to receive a
salary increase. (Id. ¶¶ 72-73). He never directly reported to
Pollak. (Id. ¶ 75). O'Sullivan alleges that his supervisor, Ray
Pearce, told him "that the person he intended to hire as a
was too old." (Id. ¶ 79). O'Sullivan did eventually hire a man
in his 50's. Pearce allegedly responded "that he did not want an
older individual hired as a manager because he would not have
enough energy to do the job." (Id. ¶ 80). Pearce was 35 in
1995. (Id. ¶ 81). O'Sullivan also alleges that at a town
meeting in late 1994 or early 1995, Arthur Sulzberger, Jr., the
Publisher of The New York Times, stated that "if you are a
manager over 40 in The New York Times your career was pretty much
over." (Schneider Aff., Ex. J, p. 150). When asked about this
incident, Mathews, also present at the town meeting, stated that
he recalled Sulzberger's saying that "white males were an
endangered species." (Lauri Aff., Ex. K, p. 222). Mathews could
not recall if there was a reference to age or not. (Id.)
O'Sullivan received a rating of "3" on the Supervisory Reference
Form. (Def. 56.1 Statement ¶ 40). As part of reorganization, the
Philadelphia office was closed and, thus, O'Sullivan's position
was eliminated. The Philadelphia territory was taken over by Paul
Brown, 44, who received a rating of "4". (Id. ¶¶ 42-45).
Kenneth Mooney was 49 years old and had been working at The
Times for 31 years when he lost his job in 1995. (Pl. Material
Facts ¶¶ 84-85). He held many positions and, in 1993, Prestera
asked him to become the Production Distribution Manager,
requiring him to oversee individuals who would be monitoring the
newspaper deliveries from the plants to the wholesalers. (Id. ¶
94). Although Mooney received a rating of "4-5" on the
Supervisory Reference Form, with the elimination of the night CSR
positions, there were no employees requiring supervision. (Def.
56.1 Statement ¶¶ 75, 76). After his termination Mooney asked The
Times for a list of available jobs. He alleges that he was given
a list of openings for writers and reporters and was not advised
of the openings in the COF Department. Mooney became aware of a
position in COF when he saw the posting at The Times. Mooney
applied for this position and was hired. (Pl. Material Facts ¶¶
97-99). He received the same salary and benefits in the COF
Department as in his previous position in Circulation. (Def. 56.1
Statement ¶ 82). As a manager, Mooney was asked to provide oral
evaluations for certain individuals whom he did and did not
manage and alleges he was not informed that his evaluations would
be used in the lay-off process. (Pl. Material Facts ¶ 101). One
of the individuals that Mooney evaluated was plaintiff Enrique
Edwards. Mooney denies that he gave Edwards a rating of "2" which
appears on Edwards' evaluation form. (Schneider Aff., Ex. K, pp.
221-223). Mooney did not want to evaluate Edwards because he
claims he "had no firsthand knowledge on what [he] should say."
(Id. p. 222). Mooney does admit that he previously knew Edwards
for six months. (Id.).
Sheila McCue ("McCue") began working at The Times in 1980 in
the classified advertising department and was terminated at age
45. (Id. ¶¶ 103-104). McCue claims she never received any
complaints or criticism from either Shelton or Pollak. (Id. ¶
108). McCue reported directly to Kevin Cappallo and alleges he
never complained about her performance. (Id. ¶ 112). Cappallo,
however, gave her a rating of "2" on her Supervisory Reference
Form and, as compared to other CSRs, viewed her as not
sufficiently independent and lacking the ability to manage a
large staff or larger territory necessary in the CSR position.
(Def. 56.1 Statement ¶¶ 110, 113, 114).
Enrique Edwards was 57 years old when he was terminated after
27 years at The Times. He claims that he was consistently told
that he was doing a good job by the managers including Shelton.
(Pl. Material Facts ¶ 129). He received a rating of "2" from
plaintiff Mooney, although Mooney denies that he gave this
rating. (Schneider Aff., Ex. K, p. 221). The night CSR department
was eliminated, thus Edwards had no employees to supervise, and
his position was terminated. (Def. 56.1 Statement ¶¶ 50, 52).
Benjamin Redmond began working at The Times in 1989 and was 50
years old when he was terminated. (Pl. Material Facts ¶ 131).
Redmond never directly reported to Pollak, Shelton or Prestera
and during his course of employment received two publisher's
awards. (Id. ¶¶ 140, 143). He received a "2" on the Supervisory
Reference Form and was one of the first Home Delivery Managers
whose position was eliminated. (Def. 56.1 Statement ¶¶ 102, 104).
Redmond's territory was taken over by Mary Ann Licata, 46, who
had received a rating of "4" on her Supervisory Reference Form.
Each of the plaintiffs testified that no age-based comments
were ever made by the Decisionmakers. (Def. 56.1 Statement ¶¶ 46,
54, 64, 72, 83, 94, 98, 106, 115). Circulation had 128 employees
before firing 29 employees in August 1995. Before reorganization,
72% of the employees in Circulation were over 40 years old. After
reorganization, 68% of the employees were over 40 years old.
Furthermore, prior to August 1995, 77.5% of ...